Decisions, Decisions: How Will The Justices Make Them?

So what happens now? For a behind-the-scenes glimpse into what the justices do between now and when they issue a ruling, I'm joined by a former Supreme Court clerk. Chris Walker clerked for Justice Anthony Kennedy from 2008 to 2009. Chris, welcome to the program.

CHRIS WALKER: Great to be here.

BLOCK: I'm curious, first, how much justices are actually swayed by the oral arguments such as those that we've heard of in the last three days. Or typically, would they have made up their minds based on the legal briefs that they've been reading up until now?

WALKER: So, the briefs do quite a bit of work. In most cases, the briefs are what, you know, educate and help the justices form opinions. I'd say the arguments oftentimes help the justices focus the issues and it also gives the chance for the justices to talk to each other through the lawyer.

BLOCK: And they wouldn't have done that up until then, about a case?

WALKER: Not usually, no. Usually the first time they have a chance to really interact with each other is at argument. And that's why you hear questions from some justices that seem to be pressing issues to try to get certain answers out of the lawyers to send a message to other justices.

BLOCK: Uh-huh. It's sort of the code, the code from one justice to another.

WALKER: That's right.

BLOCK: Huh. Well, now, the arguments are over. Do the justices meet right away, take an initial vote? What do they do?

WALKER: So they'll meet - I think Friday they have a conference shortly after arguments and they go around the table and say which way they would vote and why. Each justice will express his or her view on how the case should be decided. And then, from there, they'll, you know, decide based on who's in the majority. The most senior justice will assign that opinion to one of the other justices or to himself and the majority.

BLOCK: So the conference, initial vote and then what happens?

WALKER: So they'll go back to the drawing board. The justice that's writing the opinion will meet with his clerks and start drafting an opinion. Once the opinion is ready, it will be circulated to the whole court for the justices to comment and decide whether they want to join it.

BLOCK: And would there never be a case where there's a justice who just hasn't decided, hasn't made up his or her mind and might be still persuaded one way or the other?

WALKER: Yeah, that does happen, or that wants to see an opinion before deciding whether to join it. It's not like they're locked in stone at that point. In fact, votes do change after they see opinions sometimes.

BLOCK: They do?

WALKER: Yeah. So that's just the nature of the drafting process, is trying to figure out whether it actually writes, whether it makes sense once the decision's been written down.

BLOCK: Chris, how much lobbying, and I use the word loosely, how much lobbying or arm-twisting is there from justice to justice. Are people trying to persuade someone in one direction or another?

WALKER: With respect to lobbying, there are definitely, you know, justices have their opinions and they do try to convince others, either through their writing or through conversations to join in what they agree. So, that's a pretty, you know, obvious part of how the process works. You know, in this case, it seems, at least on the mandate issue, the main merits issue that the chief and Justice Kennedy might be the swing votes there.

And so you would expect the other justices to be in their ear, either through their clerks or directly to try to help them understand, you know, which way they should come out.

BLOCK: As somebody who clerked for Justice Kennedy, I'm curious, as you listened to his questions this week, listened to him formulating his thoughts, did you have the sense of somebody who was very much in the process of still making up his mind or were you sensing, I think I know where he's going on this?

WALKER: Justice Kennedy's a hard one to read, I think, at arguments. He was for me even as a clerk when I was sitting there because he's atypically very open-minded when he comes to these cases. He likes to come with a fresh view and oftentimes he makes his ultimate decision after argument. And so, based on reading the transcript, I think it's hard to tell. I mean, he's obviously pretty skeptical on the individual mandate being constitutional. But that could also just be him thinking out loud.

It would not surprise me, a fellow co-clerk said to The Washington Post today that, you know, it would not surprise him if Justice Kennedy hasn't made up his mind yet. And I would agree. Based on the argument, it's just not entirely clear that he's in one camp or another. It's a close question and it's a hard one. And those are the ones where Justice Kennedy will take much more time, you know, to figure out which way, you know, he thinks is the correct decision.

BLOCK: Chris Walker, thanks so much for coming in.

WALKER: Great, thank you.

BLOCK: Chris Walker clerked for Justice Anthony Kennedy from 2008 to 2009. He's now a lawyer in private practice. Transcript provided by NPR, Copyright National Public Radio.